To Apply the Fourth Amendment in the Digital Age, Go Back to Its Text

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Timothy Carpenter and Timothy Sanders were convicted in federal court on charges stemming from a string of armed robberies in and around the Detroit area. They appealed on the ground that the government had acquired detailed records of their movements through cell site location information (“CSLI”) from their wireless carriers in violation of the Fourth Amendment. The U.S. Court of Appeals for the Sixth Circuit turned their appeal aside, finding that “[t]he government’s collection of business records containing these data … is not a search.”

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Presumably, when called on to determine whether a Fourth Amendment violation has occurred, courts would analyze the elements of this language as follows: Was there a search? Was there a seizure? Was any such search or seizure of “their persons, houses, papers, [or] effects”? Was any such search or seizure reasonable?

In cases involving familiar physical objects, they usually do. In harder cases dealing with unfamiliar items such as communications and data, however, courts retreat to the Supreme Court’s “reasonable expectation of privacy” doctrine that emerged from Katz v. United States (1967). The Court has decided to review the important criminal-procedure and digital-privacy issues here.

Cato and the Competitive Enterprise Institute, joined by Reason Foundation and the Committee for Justice, filed an amicus brief urging the Court to return to the text of the Fourth Amendment. The reasonable expectation of privacy test is outdated because it lacks a strong connection to the text and asks courts to conduct a sociological exercise rather than a judicial one. This is especially true in the context of new technology, where societal expectations have not been fully formed yet and will change based on the Court’s judgment, leading to circular reasoning.